DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC. No. 92 of 01-04-2009<br /> Decided on : 01-12-2009 <br /> <br /> 1.Ram Singh minor son of Sh. Karamjit Singh, aged about 2 years through his natural guardian and next friend (Father).<br /> 2.Karamjit Singh son of Harbhajan Singh, R/o Phul Town, Tehsil Phul, District Bathinda.<br /> .... Complainant<br /> Versus<br /> <br /> 1.State of Punjab, through the Secretary Health and Family & Welfare Department, Punjab, Chandigarh.<br /> 2.The Punjab Health Systems Corporation, Punjab, Chandigarh, through its Chairman.<br /> 3.Civil Surgeon, Civil Hospital, Bathinda.<br /> 4.Medical Officer, PHC Phul, Tehsil Phul, District Bathinda.<br /> 5.Gurinder Singh, Radiographer, PHC, Phul.<br /> 6.Tinku Class-IV employee of PHC, Phul.<br /> ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh. George, President<br /> Dr. Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member<br /> <br /> For the Complainant : Sh. Manohar Lal Sharma, counsel for the complainant.<br /> For the Opposite parties : Sh. Mohinder Pal Garg, counsel for opposite party No. 4.<br /> Opposite parties No.1,2,3,5& 6 exparte. <br /> <br /> O R D E R<br /> <br /> GEORGE, PRESIDENT<br /> <br /> 1. Briefly stated the case of the complainants is that complainant No. 1 Ram Singh is the minor son of the complainant No. 2. While playing, he fell down and received some visible and un-visible injuries. Complainant No. 2 took his son to PHSC, Phul. The concerned doctor after examination of his son advised for X-ray and accordingly, he deposited Rs. 40/- as X-ray fee, but he was kept waiting fore the whole day on the pretext that there is no electricity while the X-ray of the other persons who were having approach in the Hospital were being done. Without X-ray, no further treatment could be given to his son and he was crying due to pain. Ultimately, complainant contracted Civil Surgeon and X-ray of his son was conducted and that too by Class IV employee, opposite party No. 6, who has no knowledge to conduct X-ray. When the complainant approached opposite party No. 4 with X-ray report, he asked him to come on the next day. Since the son of the complainant was crying with pain, under forced circumstances, he took his son to private hospital where the doctors found X-ray report to be defective and he again got done X-ray for which he had to spend Rs. 600/-. The complainant No. 2 asserts that Public Health Systems Corporation has been formed to provide better health facilities to the people and not to play with their life. The opposite parties are playing with the life of the people and putting them under great risk by handing over the patients to class IV employee, a non-technical person for X-ray. Hence, this complaint for issuing directions to the opposite parties to pay Rs. 50,000/- as damages plus cost of this forced litigation.<br /> 2. The opposite parties No. 1,2,3,5 & 6 did not appear before this Forum despite due service and therefore, they were proceeded against exparte.<br /> 3. The opposite party No. 4 filed reply taking preliminary objections that complaint is wholly misconceived, frivolous and vexatious; no specific and justified allegations with regard to negligence or deficiency in providing services has been made; complaint is not supported by any medical expert; the complaint is baseless and flagrant abuse of process of law and the dispute raised by the complainant in the present complaint is manifestly outside the purview of the 'Act'.<br /> On merits, it has been submitted that on 11-11-20087, Karamjit Singh brought his son Ram Singh to OPD with H/o fall while playing four days back. He complained of visible deformity of left forearm. The patient was already taking treatment from a quack and was bearing a Plaster of Paris back splint of forearm. When Ram Singh, complainant No. 1 was brought to the OPD by Karamjit Singh his father (complainant No. 2) with X-ray, the opposite party No. 4 saw it was mal-uniting fracture of both bones left forearm. Opposite party No. 4 suggested treatment in the form of correction of deformity under full anesthesia and application of POP. He sent the patient to operation theatre to Dr. Gurinder Reet Kaur, the doctor of anesthesia for pre-anesthesia check up. After examination, she noticed that for induction of anesthesia, the patient was not empty stomach for 6 hours, which was mandatory. She informed the facts to opposite party No. 4 on intercom and suggested to call the patient next morning empty stomach and accordingly, he suggested the father of Ram Singh to bring him next morning empty stomach. In the meantime, at his own will, the complainant No. 2, took his son to a private hospital in the evening. As by evening the child was already 6 hours fasting, so Dr. G S Mann of Multispeciality Hospital, Rampura Phul, after calling Dr. Kuljeet Singh, the anesthetist performed the required procedure under full anesthesia. It has been pleaded that the patient was brought to OPD as a routine case and was not taken to emergency where he could have been attended immediately but the complainants waited in long queue of OPD and waited for their turn. This clearly indicates that the injury was not fresh and child was not having any pain. Remaining averments made in the complaint have been denied and prayer has been made for dismissal of the same.<br /> 4. In support of his averments made in the complaint, the complainant has produced in evidence photocopy of Statement of complainant No. 2 Ex. C-1, photocopy of letter dated 17-12-09 Ex. C-2, letters dated 11-02-09 and 6-2-09 Ex. C-3 and Ex. C-4 respectively, photocopy of letter dated 6-2-09 Ex. C-5, photocopy of Enquiry report Ex. C-6, receipt dated 11-11-2008 Ex. C-7, OPD slip Ex. C-8, a note Ex. C-9, prescription slip Ex. C-10, payment receipts Ex. C-11 to Ex. C -13, Cash memo dated 11-11-08 Ex. C-14, letter dated 17-12-08 Ex. C-15, copies of applications dated 12-11-08 and 24-12-2009 Ex. C-16 and Ex. C-17 respectively, letter dated 20-02-09 Ex. C-18 and affidavits of S/Sh. Jagsir Singh and Karamjit Singh Ex. C-19 & Ex. C-20 respectively.<br /> 5. To controvert the evidence of the complainant, the opposite parties produced in evidence affidavit of Dr. Gobind Ex. R-1, photocopies of certificates Ex. R-2 to Ex. R-3, photocopy of order dated 13-01-2006 Ex. R-4, Attendance report Ex. R-5, photocopy of attendance register Ex. R-6, photocopies of reports dated 6.2.09 and 20-02-09 Ex. R-7 and Ex. R-8 respectively, photocopy of letter dated 6.2.09 Ex. R-9 and photocopy of report dated 16-02-09 Ex. R-10.<br /> 6. We have heard learned counsel for the complainant and opposite party No. 4 and have gone through the entire record of the case.<br /> 7. The learned counsel appearing on behalf of the complainant has urged that Sh. Karamjit Singh, complainant No. 2, took his son Ram Singh, complainant No. 1, for treatment to opposite party No. 4, who is Medical Officer, PHSC Rampura Phul, after the OPD slip Ex. C-8 was prepared. Ram Singh, complainant No. 1, sustained fracture in his left arm while playing in the morning of 11-11-2008 and when he was taken to the hospital for treatment, opposite party No. 4 advised X-ray. The complainant was not infact subjected to X-ray as Radiologist was not available in the hospital on that day. Karamjit Singh after noticing that opposite party No. 4 is not paying any attention to treat his son Ram Singh, he made a telephone call to the Civil Surgeon at Bathinda and only on his intervention, the complainant No. 1 was subjected to X-ray that too by class IV employee of the PHSC. Karamjit Singh, was asked to pay Rs. 40/- for the X-ray of his son which he paid vide receipt Ex. C-7. He urged that despite the X-ray report received by opposite party No. 4, he did not proceed with further treatment of Ram Singh. The child was crying due to pain but opposite party No. 4 advised Karamjit Singh to visit him on the next day for treatment. Under forced circumstances, as the child was crying with pain and opposite party No. 4, neither attended him nor proceeded with his treatment, therefore, he had to take the child for treatment to Dr. Hindi Memorial Hospital and Surgical Centre on the same day, where doctor on seeing the X-ray conducted in PHSC, by class IV employee told him that X-ray is not correct and therefore, he asked him for another X-ray for which he paid an amount of 80/- vide receipt Ex. C-13.<br /> The learned counsel further urged that Ram Singh was treated in the private hospital by Dr. Jatinder Bansal as per prescription slip Ex. C-10 and Sh. Karamjit Singh had to pay Rs. 70/- and POP fee Rs. 430/- as per receipt Ex. C-11 & Ex. C-12 to Dr. Hindi Memorial Hospital and Surgical Centre, Rampura Phul. He also purchased on the prescription of Dr. G S Mann, medicines worth Rs. 98/- as per cash memo Ex. C-14. The learned counsel has also referred various documents which are arising out of the controversy i.e. Ex. C-1 to Ex. C-6 & Ex. C-15 to Ex. C-18 and also referred to the affidavits of Sh. Jagsir Singh Ex. C-19 and Karamjit Singh Ex. C-20.<br /> The learned counsel vehementally urged that stand taken by opposite party No. 4 who is the only contestant opposite party that patient was already taking treatment from a quack and was bearing a Plaster of Paris back splint of forearm, when he was brought to the OPD by his father with X-ray and the opposite party No. 4 saw it was a mal-uniting fracture of both bones left forearm and accordingly opposite party No. 4 suggested treatment in the form of correction of deformity under full anesthesia and application of POP and he sent the patient to operation theatre to Dr. Gurinder Reet Kaur, the doctor for anesthesia for pre-anesthesia check-up who after examination, noticed that for induction of anesthesia, the patient was not empty stomach for 6 hours, which was mandatory and on information about the facts, opposite party No. 4 suggested Karamjit Singh to bring his son on the next morning empty stomach, for further treatment, is without any base. He urged that on seeking the non-cooperative adamant attitude of opposite party No. 4 and also seeking the condition of his son who was crying with pain, he had to take his son Ram Singh to a private hospital for treatment where the child was treated as per prescription slip Ex. C-10. The learned counsel urged that as per prescription slip Ex. C-10, there is no mention of the fact that child was put under full anesthesia before he was put to treatment and POP was applied to the fractured bone. <br /> 8. The learned counsel urged that as per prescription of opposite party No. 4, it is apparently clear that child was taken to opposite party No. 4 but he except prescribing X-ray, did not mention any such fact which he tried to plead first in his reply and thereafter he has tried to prove it by filing his affidavit Ex. R-1. He further urged all the facts mentioned in his reply as well as in his affidavit Ex. R-1, do not find any support from the record i.e. prescription slip Ex. C-8. He pleaded that opposite party No. 4 has taken plea that he had to postpone the treatment of the child for the next day on the advice of Dr. Gurinder Reet Kaur who after examining the child informed him that the child was not empty stomach for 6 hours which is mandatory for administering full anesthesia. However, Dr. Gurinder Reet Kaur was not examined nor her affidavit has been brought on record to prove this fact. <br /> 9. The learned counsel appearing on behalf of opposite party No. 4 has vehementally controverted the arguments put forward by the learned counsel for the complainants and he urged that patient was brought to opposite party No. 4 who was not crying with any pain as the injury was not fresh but 4 days old and the patient was already bearing a Plaster of Paris back splint of forearm. The Opposite party No. 4 after examining Ram Singh and X-ray brought by the complainants recommended for a fresh X-ray of the child and after seeing X-ray, opposite party No. 4 suggested treatment in the form of correction of deformity under full anesthesia and application of Plaster of Paris.<br /> Learned counsel urged that opposite party No. 4 infact intended to go ahead with the treatment of the child and therefore, he sent patient to operation theatre to Dr. Gurinder Reet Kaur, doctor for anesthesia for pre-anesthesia check-up. Dr. Gurinder Reet Kaur, after examination of the child informed opposite party No. 4 on intercom that the child was not empty stomach for 6 hours which is mandatory for administration of full anesthesia and on her advice, the complainant No. 2, was told to bring his son for further treatment on the next morning empty stomach. Learned counsel further urged that in the meanwhile the complainant at his own took the patient to a private hospital in the evening. As by the evening the child was already 6 hours empty stomach so Dr. G.S. Mann of Multispeciality Hospital, Rampura Phul, with the assistance of Dr. Kuljit Singh, anesthetist performed the required procedure under full anesthesia. He pleaded that there was no negligence on the part of opposite party No. 4 in performing his professional obligation towards the patient nor there was any deficiency in service and the complainants are motivated to disgrace the professional conduct of opposite party No. 4.<br /> 10. After taking into consideration the entire record of the case and rival contentions raised by both the learned counsel for the parties, it appears that complainant Ram Singh who is about 2 years old was taken to opposite party No. 4 on 11-11-2008 for his treatment, by his father as Ram Singh while plying fell down and sustained fracture in his left arm. The opposite party No. 4 advised X-ray of Ram Singh as per OPD slip Ex. C-8, of Civil Hospital, Rampura Phul. As per the version of the father of Ram Singh, after opposite party No. 4 advised X-ray of Ram Singh, he continued to approach the authorities of the Civil Hospital, Rampura Phul, for X-ray of his son but he could not get any response. Resultantly, he had to make a telephone call to the Civil Surgeon, Bathinda, and thereafter opposite party No. 4 got X-ray of Ram Singh done through one of his class IV employee and after seeing the X-ray, advised the father of Ram Singh to bring him for further management on the next day empty stomach. According to the affidavits of Sh. Jagsir Singh Ex. C-19 and Karamjit Singh Ex. C-20 and the version given by Kamaljit Singh father of the complainant Ram Singh that Ram Singh was crying with pain but he was not attended to by opposite party No. 4 who continued to postpone the medical treatment on one or the other reason. Accordingly, complainant No. 2 when could not get any medical treatment for his son from opposite party No. 4, he took the complainant Ram Singh to Dr. Hindi Memorial Hospital and Surgical Centre, Rampura Phul, where the child Ram Singh was attended to by Dr. G S Mann after getting his another X-ray done and charging an amount of Rs. 180/- vide receipt Ex. C-13, he prepared OPD slip Ex. C-10 on the same day i.e. 11-11-2008 and provided immediate treatment to Ram Singh, as mentioned in OPD slip Ex. C-10 and he charged an amount of Rs. 70/- and Rs. 430/- as per receipt Ex. C-11 & Ex. C-12.<br /> 11. The allegations against opposite party No. 4 are that he did not attend Ram Singh, complainant No. 1 and postponed the treatment and thus he failed to provide adequate necessary treatment to the child despite the fact that child was crying with pain due to fracture he received in his left arm. The opposite parties No. 1 to 3 and 5 & 6 were proceeded against exparte during the trial of the case. Only opposite party No. 4 contested the allegations of the complainant in his reply, as well as in his affidavit Ex. R-1 and also in his written arguments. He has repeated only defence that the patient was already taking treatment from a quack and was bearing Plaster of Paris back splint of forearm and after his examination, he sent him to Dr. Gurinder Reet Kaur for pre-anesthesia check up and she informed him that the patient is not empty stomach for 6 hours and accordingly opposite party No. 4 suggested the father of complainant Ram Singh to bring him next morning empty stomach. According to opposite party No. 4, father of the patient instead of visiting him the next morning took his son Ram Singh to a private hospital in the evening and as by evening the child was already 6 hours fasting so Dr. G S Mann performed the required procedure under full anesthesia. He also mentioned that when he examined the patient, he noticed visible deformity of left forearm and thereafter he advised an X-ray of forearm of patient and suggested treatment in the form of correction of deformity under anesthesia and application of POP. The stand taken by opposite party No. 4 appears to be an after thought and has been introduced in order to evade his liability. If he would have acted in the manner as he has pleaded in his reply and also taken stand in his affidavit Ex. R-1 as well as in his written arguments, as referred to above, he would have definitely mentioned all these facts in the OPD slip Ex. C-8 of the patient (Ram Singh). It appears that opposite party No. 4 was taking every thing lightly and he did not even mention what kind of treatment he wanted to provide to the patient and what were the circumstances under which the patient was called upon to visit Civil Hospital, Rampura Phul the next day empty stomach.<br /> 12. The OPD slip Ex. C-8 does not reveal any such situation or advice on the part of opposite party No. 4. It also appears from the record that opposite party No. 4 had taken no trouble to take X-ray of the child in his presence so as to ensure the correctness of the X-ray report rather he preferred to take assistance of a non-technical person i.e. Class IV employee Civil Hospital, Rampura Phul. As to why he has not taken X-ray and follow-up action of the patient itself reveals that how casual he was in discharging his official duties as well as social and moral obligations. <br /> 13. The opposite party No. 4 is claiming that injury to the patient was not fresh but 4 days old. Moreover the patient was already bearing Plaster of Paris back splint of forearm. In such a situation, how opposite party No. 4 could notice a visible deformity in the left forearm of the patient. The opposite party No. 4 is taking contradictory stand without actually mentioning all the required facts in the OPD slip Ex. C-8 of the patient. <br /> 14. The stand taken by Karamjit Singh, complainant No. 2 in the complaint as well as in his affidavit Ex. C-20 is fully corroborated on all material particulars by Sh. Jagsir Singh, in his affidavit Ex. C-19. The documents Ex. C-1 to Ex. C-7 and C-15 to Ex. C-18 also reveal the story in which the complainant No. 1 was taken to Civil Hospital, Rampura Phul and in which manner he was attended to by opposite party No. 4 and under what circumstances Karamjit Singh had to take his son Ram Singh, to a private Hospital for treatment.<br /> 15. The record also fully support the version given by Karamjit Singh, father of Ram Singh, that he had to take his child Ram Singh to Dr. Hindi Memorial Hospital & Surgical Centre, Rampura Phul, under forced circumstances because opposite party No. 4 did not attend to his son through out the day whereas after the child was taken to the private hospital, he was attended to immediately and fresh X-ray was taken for which he had to pay additional amount of Rs. 80/- as X-ray conducted by Class IV employee was found defective and he had to pay an additional amount of Rs. 70/- and Rs. 430/- to the private Hospital for the treatment of his son. <br /> 16. The stand taken by opposite party No. 4 that son of the complainant No. 2 was having 4 days old injury or that he noticed a visible deformity of left forearm and therefore, he suggested treatment in the form of correction of deformity under anesthesia and application of POP, does not find support from the OPD slip Ex. C-10, of Dr. G S Mann. If the child would have been given anesthesia and operated upon in the form of correction of deformity under anesthesia., Dr. G S Mann would have mentioned all these facts in his prescription slip Ex. C-10 and therefore, we have reason to conclude that the stand taken by opposite party No. 4, that he postponed the treatment of the patient for the next day as Dr. Gurinder Reet Kaur, the doctor for anesthesia informed him that the patient was not empty stomach for 6 hours and in such a situation anesthesia could not be administered to him, is not supported from any direct or indirect or documentary evidence. The opposite party No. 4 has failed to produce Dr. Gurinder Reet Kaur, in evidence so as to prove that in fact on her advice, the treatment of patient (Ram Singh) was postponed for the next day as the patient was not empty stomach for 6 hours. If the stand taken by opposite party No. 4, would have been true, he would have definitely filed an affidavit of Dr. Gurinder Reet Kaur, in support of his version. <br /> 17. The stand taken by opposite party No. 4 that as by the evening child was 6 hours fasting so Dr. G S Mann of Multispeciality Hospital, Rampura Phul after calling Dr. Kuljeet Singh, the anesthetist performed the required procedure under full anesthesia, do not find support from the OPD slip of Dr. G S Mann Ex. C-10, as there is no mention of all these facts. Moreover, opposite party No. 4 could have proved all these facts by filing affidavit of Dr. G S Mann and Dr. Kuljeet Singh, but he has not preferred to file affidavit of these doctors and therefore, we have every reason to draw an adverse inference against opposite party No. 4 that if he would have approached Dr. Gurinder Reet Kaur or Dr. G S Mann or Dr. Kuljeet Singh, they would not have supported his stand.<br /> 18. As per section 2(1)(g) of the 'Act', “deficiency' means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.”<br /> 19. The record reveals that opposite party No. 4 being the senior doctor, was required to take immediate steps in the management of treatment of the patient which from the evidence on record, appears that he has not taken proper care to manage the treatment of Ram Singh, complainant No. 1. He left the work of taking X-ray which is highly technical to the satisfaction of a class IV employee and he also postponed the treatment of the patient for the next day on flimsy and inadequate reasons. If Dr. G S Mann could have managed and given the treatment o the patient on the same day, as to why opposite party No. 4 could not provide the same on the same day and he in his choice postponed the management of the treatment on the next day which itself amounts to deficiency in service as a government hospital doctor and he has definitely personally liable for his act and conduct and rendering deficient service to the needy poor patient.<br /> 20. It has been held by the Hon'ble Supreme Court in the case titled Lucknow Development Authority Vs. M K Gupta AIR 1994 Supreme Court 787 wherein it has been held that :-<br /> “But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can not more claim be under protective cover.<br /> It has been further held that :-<br /> “It was never more necessary than today when even social<br /> <br /> <br /> obligations are regulated by grant of statutory power. The test of permissible form of grant are over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the Court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from these who are found responsible for such unpardonable behaviour.”<br /> 21. Keeping in view the facts, circumstances and the evidence discussed here-in-above and also the view expressed by the Hon'ble Supreme Court, we are of the considered view that in the present case, opposite parties No. 1, 2, 3 and 5 & 6 are not liable for payment of any compensation to the complaint. Hence, complaint against opposite parties No. 1, 2, 3 and 5 & 6 is dismissed and accepted qua opposite party No. 4. Due to the act and conduct and manner in which treatment was postponed, it was apparently a malafide act on the part of opposite party No. 4 and therefore, he is liable to pay the entire compensation which we assess, in the peculiar facts and circumstances of the case, to the tune of Rs. 50,000/- alongwith an additional amount of litigation expenses to the tune of Rs. 5,000/-. <br /> <br /> <br /> <br /> <br /> The compliance of this order be made within 45 days from the date of receipt of copy of this order.<br /> Pronounced :<br /> 01-12-2009 <br /> (George)<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> <br /> (Amarjeet Paul) Member